Amanda Knox, Double Jeopardy, and Innocence

Yesterday, the Italian Supreme Court announced Amanda Knox will be retried for the killing of Meredith Kercher. An Italian appellate court acquitted Knox in 2011. Knox, who has been living in the United States since her conviction was overturned, may have to go back to Italy for retrial.

Double Jeopardy – a few different media outlets have been reporting that it may be double jeopardy (under US law) for Knox to be tried again. Knox got tried by a trial court and found guilty. The Appellate Court then retried Knox, heard additional evidence and acquitted Knox of the murder charge. Most recently, the Italian Supreme Court decided to require a retrial of Knox.

How does this differ from the American Legal System? Take the case of William Richards. Richards was tried and convicted in San Bernardino County. Some years later, we worked to get Richards’ conviction overturned through the use of a petition for writ of habeas corpus. The trial court heard new evidence and determined false evidence was introduced at trial and new evidence pointed unerringly to innocence. The trial court threw out the underlying conviction. The court of appeal, in its review of Richards’ habeas hearing, decided to reinstate the underlying conviction and overturned the trial court’s decision on the habeas petition. The California Supreme Court took up the case and determined the Court of Appeal was right and affirmed the reinstatement of the trial conviction.

Notice the difference? It is subtle, yet obvious in the sense that the court of appeal in Richards did not acquit Richards, it merely reinstated the conviction the trial court attempted to throw out through the habeas process. Arguably, if the appellate court in Knox’s appeal simply overturned the trial court, the Italian Supreme Court could reinstate the underlying conviction without the worry of double jeopardy. However, since the appellate court retried the case and acquitted Knox, any subsequent retrial would potentially result in Double Jeopardy under US law.

This raises the question of extradition. Should or would the US extradite Amanda Knox considering the fact that Knox’s Fifth Amendment right to be free from Double Jeopardy would be violated?

Additional Testing – prior to the appellate court acquitting Knox, additional DNA testing was conducted. Our friends at the Idaho Innocence Project assisted in the review of the case and concluded Knox’s DNA was not present on Kercher’s bra clasp. In fact, over 100 samples from the crime scene were taken and Knox (and her boyfriend) were excluded from every single sample. Experts were not able to exclude Rudy Guede.

In California, we would argue the discovery of Guede’s DNA at the crime scene not only raises a reasonable probability of a different result, but points unerringly to Amanda’s innocence. This is, of course, because Guede’s DNA has no business being there and Guede was a known criminal.

In the end, Knox should not be tried again for the crime since the appellate court acquitted her. Hopefully, the Italian justice system will get it right a second time and acquit her of a crime she did not commit.